Partial Birth Ban Decision is Not Impartial Justice

04/23/2007 06:09 pm ETUpdated
May 25, 2011

I thought I was beyond outrage, that somehow I'd managed to slip through a wormhole in the red state/blue state universe and find a little place next door to the Dalai Lama - Dalai Lama adjacent, as the spiritual Realtors say. But then I read Justice Kennedy's majority opinion upholding the ban on the so-called "partial birth" abortion. Acknowledging that "we find no data" on which to base his claim, Justice Kennedy argued that the ban was for the mother's own good. "The love of a mother has for her child" is so great that an abortion must necessarily grieve her. And how much worse would she grieve if she found out later what the procedure entailed, information which a doctor about to perform an intact D&E might not have shared with her, worries Justice Kennedy.

Well, I'll give him the last bit: informed consent -- knowing the facts of the procedure -- is important. That's what conscience is: acting with (con) knowledge (science). But why should it just be mothers who act with conscience. Why not the Supreme Court? Since when did data -- evidence -- stop being important to the judicial system?

And don't start with the emails. I know that "evidence" is a four-letter word in the Bush administration, an artifact of that bigger bugaboo, "Science." I read the New Yorker article in which a senior administration official scoffed at the idea of a reality construed by means of "fact-based evidence." "We're an Empire now," he said; "We create our own reality." It shouldn't surprise me to see a Justice of the Supreme Court endorse Empire reality over empirical reality. After all, their decision to put Bush in the White House - to deny the recount - was a denial of fact-based evidence - the actual votes.

And yet I'm more than surprised. I'm outraged.

So here's a fact for Justice Kennedy: I had an abortion when I was young. I'd come home with someone to whom I had a fierce attraction. In a minute, we were ripping each other's clothes off. When I noticed a rip in my diaphragm, I made a decision to throw it - and caution - to the wind. I knew it was a stupid and when I realized a few days later that I was pregnant, yes, I regretted it. But honestly, the sex was so hot, I didn't regret it that much. And I certainly didn't regret the abortion I had as soon as I could make an appointment. Never. Not for an instant.

Neither was my decision to have an abortion "a difficult and painful" one, as Kennedy claims it must be. It didn't even feel like a decision; it was pure survival instinct. I couldn't let the probability wave that was my future collapse into a single possibility: mother. I felt an obligation to realize my other possibilities. I knew I was doing the right thing. Just as when I was faced again with the possibility of motherhood, fourteen years later, I knew this time it was the right choice to make. And I never regretted that either.

Let me say, lest you doubt my capacity for regret, that lots of things make me feel bad. The fact that the USA now has the second worst infant mortality rate in the developed world makes me feel bad. If Kennedy is so worried about maternal grief, why doesn't he do something to fix that? Believe me, the grief a woman may feel upon having an abortion is nothing compared to the grief of bringing a baby to term and having it die on you. Or don't poor women count?

And, like Justice Kennedy, I can imagine circumstances in which I might feel bad. For example, giving up a baby for adoption and finding out later it was sexually and emotionally abused. Do they tell women who are giving up their babies for adoption that that possibility exists? How informed is their consent?

Finally, there's this worst case scenario: I decide to bring a child to term and it grows up to be a Supreme Court Justice who snuffs out all my possibilities except being a mother; who decides to protect my own best interests because he doesn't trust me to decide those for myself; who makes it impossible for me and for every other woman in the country faced with an unwanted pregnancy to act with good conscience -- to do what she and she alone knows is right for her. That would make me feel really really bad.